Summary
stating that Elite Auto Body did not "rest on a detailed analysis of the word 'common'"
Summary of this case from Huynh v. Francois-LeOpinion
No. 04-19-00484-CV
08-19-2020
SEGUNDO NAVARRO DRILLING, LTD., Lewis Petro Properties, Inc., Tercero Navarro, Inc., and Rodney R. Lewis, Appellants v. SAN ROMAN RANCH MINERAL PARTNERS, LTD., Appellee
OPINION ON MOTION FOR REHEARING
On July 9, 2020, appellants filed a motion for rehearing of our June 24, 2020 opinion and judgment in this case. Having considered appellants’ motion for rehearing, we deny the motion, withdraw our June 24, 2020 opinion and judgment, and substitute this opinion and judgment in their stead.
Appellants Segundo Navarro Drilling, Ltd. ("SNDL"), Lewis Petro Properties, Inc. ("LPP"), Tercero Navarro, Inc., and Rodney R. Lewis (collectively, "Appellants") appeal the trial court's order denying a motion to dismiss they filed pursuant to the Texas Citizens Participation Act ("TCPA"). Appellants’ motion sought to dismiss breach of contract, conversion, and vicarious liability claims asserted by appellee San Roman Mineral Partners, Ltd. We affirm the trial court's order.
BACKGROUND
San Ramon owns mineral rights in the Eagle Ford Shale in Webb County, Texas. In 2008, it signed three oil and gas leases with SNDL to develop those minerals. Rodney R. Lewis, who is the president of SNDL's general partner, Tercero Navarro, signed the leases on SNDL's behalf. LPP—of which Lewis is also president—operates the wells on the land covered by the leases.
The leases contain provisions allowing SNDL to conduct seismic "shoots," or surveys, on the leased land. These shoots gather seismic data that is necessary to develop minerals in the complex Eagle Ford Shale formation. The leases specify that:
[SNDL] may not grant permission for seismographic or other "shooting operations" on the Leased Premises to others nor may others who do not own any legal or equitable interest in this Lease participate in the costs of such seismic operations in exchange for such data, as [SNDL] may only conduct or cause to be conducted such operations for its own use.
The leases further provide that "[SNDL] shall provide [San Ramon] with a copy of" seismic data obtained from any "3D seismic survey" SNDL conducts on the leased premises. SNDL also "agree[d] not to sell such seismic data without [San Ramon's] consent."
After SNDL and San Roman executed the three leases, LPP contracted with a company called Global Geophysical Services, Inc. ("Global") to conduct seismic shoots in an area the parties refer to as the Hawk Field. That area includes a portion of the San Roman leasehold. The LPP-Global contract provides that Global has authority to conduct seismic shoots "to the extent L.P.P. has the right or authority to grant such permission," that Global will own any resulting data, and that Global "shall have the sole right to grant non-exclusive licenses" to the data. The contract also provides that Global was responsible for obtaining any necessary permits to conduct its work. After Global conducted the Hawk Field shoot, it licensed the seismic data it obtained to both LPP and to unidentified third parties.
Global did not obtain permission from San Roman to conduct any portion of the Hawk Field shoot, and San Roman contends that neither SNDL nor LPP had authority to grant Global permission to survey San Roman's leasehold. When San Roman learned Global had conducted seismic shoots over its land and was selling the data from those shoots, it requested a copy of the data from SNDL. However, SNDL responded that it did not own the data and could not turn it over without Global's permission. San Roman then requested the data from Global, which offered to license the data to San Roman for $20,000 per acre. Global advised San Roman that it had obtained permission from SNDL "or another Lewis Energy Group company" to acquire and market the data.
After both SNDL and Global refused to turn over the seismic data, San Roman sued Appellants for breach of contract and conversion and sought declaratory judgment on its rights under one of the three San Roman-SNDL leases. It also sought to pierce the corporate veil around Lewis and hold him vicariously liable for the actions of SNDL, LPP, and Tercero Navarro. Finally, it alleged it was entitled to exemplary damages because Appellants’ actions constituted actual fraud or malice. Appellants filed a motion to dismiss San Roman's claims under the TCPA. They argued San Roman's claims are "related to communications about seismic shoots" among Appellants and between Appellants and Global and therefore implicate Appellants’ exercise of the right of association. In response, San Roman argued its claims relate only to Appellants’ private business interests and that private business interests do not fall under the umbrella of "common interests" for the purposes of the TCPA's definition of the right of association. The trial court agreed with San Roman and denied Appellants’ TCPA motion. Appellants then filed this interlocutory appeal to challenge the denial of their TCPA motion as to San Roman's breach of contract, conversion, vicarious liability and veil-piercing, and exemplary damages claims.
Appellants do not challenge the denial of their TCPA motion as to San Roman's declaratory judgment action.
ANALYSIS
Standard of Review
We review a trial court's denial of a TCPA motion to dismiss de novo. Robert B. James, DDS, Inc. v. Elkins , 553 S.W.3d 596, 603 (Tex. App.—San Antonio 2018, pet. denied). In reviewing a ruling on a TCPA motion, "[w]e view the pleadings and evidence in the light most favorable to the nonmovant." Id.
We also review questions of statutory construction de novo. State ex rel. Best v. Harper , 562 S.W.3d 1, 11 (Tex. 2018). Our objective is to "ascertain and give effect to the Legislature's intent as expressed by the language of the statute." Id. (internal quotation marks omitted). When a statute does not define a key term, we give that term its "common, ordinary meaning unless a contrary meaning is apparent from the statute's language." Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n , 511 S.W.3d 28, 34 (Tex. 2017). To determine a word's common, ordinary meaning, we look first to its dictionary definitions. Id. at 35. "[I]f an undefined term has multiple common meanings ... we will apply the definition most consistent with the context of the statutory scheme." Thompson v. Tex. Dep't of Licensing & Regulation , 455 S.W.3d 569, 571 (Tex. 2014).
Applicable Law
"The TCPA provides an expedited procedure for the early dismissal of groundless legal actions that impinge on First Amendment rights." Greer v. Abraham , 489 S.W.3d 440, 442 (Tex. 2016). Its purpose "is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." TEX. CIV. PRAC. & REM. CODE ANN. § 27.002. We construe the TCPA "liberally to effectuate its purpose and intent fully." Id. § 27.011(b).
A motion to dismiss under the TCPA is subject to a three-part analysis. First, under the version of the TCPA that was in effect when this lawsuit was filed, the movant is required to show by a preponderance of the evidence that the nonmovant's "legal action is based on, relates to, or is in response to [the movant's] exercise of the right of free speech, right to petition, or right of association" as those rights are defined by the TCPA. Id. § 27.003(a); see also id. § 27.005(b). If the movant makes that showing, the TCPA applies and the burden shifts to the nonmovant to "establish[ ] by clear and specific evidence a prima facie case for each essential element of the claim in question." TEX. CIV. PRAC. & REM. CODE § 27.005(c). Finally, if the nonmovant establishes its prima facie case, the movant can show it is entitled to dismissal if it "establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim." Id. § 27.005(d).
The Legislature amended the TCPA effective September 1, 2019. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Sess. Law Serv. 684, 687 (codified at Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001, .003, .005–.007, .0075, .009–.010). We apply the TCPA as it existed before the 2019 amendment. See id. Unless otherwise indicated, all citations to the TCPA are to the pre-amendment version of the statute.
Application
Because Appellants’ TCPA motion relied on the right of association, they were required to show by a preponderance of the evidence that San Roman's legal action is based on, relates to, or is in response to a "communication between individuals who join together to collectively express, promote, pursue, or defend common interests." Id. §§ 27.001(2), 27.003(a), 27.005(b). Appellants argue their communications with Global and among themselves satisfy this definition because they have a common interest in successfully extracting minerals from the area of the Hawk Field shoot. The trial court concluded, however, that San Roman's claims relate "to business interests as opposed to common [public] interests." Based on that conclusion, the trial court held the TCPA does not apply to San Roman's claims. It therefore did not reach the questions of whether San Roman established a prima facie case for each essential element of its claims or whether Appellants established valid defenses to those claims.
The word "public" appears in brackets in the trial court's order.
Appellants contend the trial court erred by concluding that "common interests" does not include the private business interests at issue here because "there is no statutory exclusion for ‘business interests’ [and] public participation is not a statutory element of the right of association." San Roman responds that the trial court's analysis is correct because "[r]equiring a community, group, or public purpose in the right to associate's ‘common interests’ is consistent with the [TCPA's] statutory scheme and encourages an effective enforcement of the TCPA while discouraging an overbroad misuse."
The trial court's denial of Appellants’ TCPA motion and the reasons it gave for that ruling are consistent with our sister court's recent holding in Kawcak v. Antero Resources Corp. , 582 S.W.3d 566 (Tex. App.—Fort Worth 2019, pet. denied). In Kawcak , the Second Court of Appeals performed a "straightforward but admittedly long" analysis of the word "common" as it is used in the TCPA's definition of the right of association. Id. at 573. The court explained:
This focus may seem trivial, but it establishes a point where two roads of TCPA interpretation diverge. One road assigns a meaning to the word "common" that embraces a set of only two people and triggers the TCPA in almost any case of conspiracy. The other road reads "common" to embrace a larger set defined by the public or at least a group. In our view, a plain-meaning interpretation of the TCPA supports the second definition.
Id.
Because the TCPA does not define "common," the Kawcak court turned to five different dictionaries to analyze its meaning. Id. ; see also TEX. GOV'T CODE ANN. § 311.011(a) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."). It noted that all five dictionaries it consulted offered multiple definitions of the word "common," with four of the five primarily defining it as relating to "a community at large" and secondarily defining it as "the interest shared by two people." Kawcak , 582 S.W.3d at 573, 575–77. In contrast, the fifth dictionary reversed those two definitions. Id. at 577. Because "common" has multiple meanings, the court was tasked with choosing the meaning it believed was most consistent with the TCPA's statutory scheme. See Thompson , 455 S.W.3d at 571. It "select[ed] the definition of ‘common’ that relates to a group or community" because that definition "carries out the stated purposes of the TCPA and prevents the right of association from being an outlier in the statutory scheme," "prevents the TCPA from being used to protect rights detached from or even at odds with the TCPA," and "carries out the Act's manifest object and avoids an absurd construction." Kawcak , 582 S.W.3d at 573. While the Kawcak Court recognized the breadth of the TCPA's language and acknowledged that other courts of appeals had reached seemingly dissimilar results, it concluded that its "dictionary-driven" examination gave effect to the Legislature's intention for the TCPA as expressed by the plain language of the statute. Id. at 575–87. Based on that reasoning, it held that "the plain meaning of the word ‘common’ in TCPA section 27.001(2) ’s definition of the ‘the right of association’ requires more than two tortfeasors conspiring to act tortiously for their own selfish benefit." Id. at 588.
We agree with Kawcak ’s thorough analysis. The characterization of "common" that Appellants ask us to apply here arguably finds support in both the broad language of the TCPA and in certain dictionary definitions. As Appellants themselves recognize, however, the trial court's order states that it relies on a version of Webster's Dictionary that defines "common" as "of or relating to the public at large." Like the Kawcak Court, we conclude that this definition of "common"—one that suggests a communal or public interest, rather than a private interest shared solely by a select few—is more congruent with both the TCPA as a whole and with our canons of statutory construction than the definitions upon which Appellants rely. See Harper , 562 S.W.3d at 11 ; Thompson , 455 S.W.3d at 571. For example, the meaning of the word "common" that the trial court applied here presumes that the Legislature intended to favor public interests over private interests. TEX. GOV'T CODE ANN. § 311.021(5). It maintains consistency between the right of association on one hand and the rights of free speech and petition—both of which the TCPA define as including a public interest component—on the other. TEX. CIV. PRAC. & REM. CODE § 27.001(3), (4) ; see also TEX. GOV'T CODE ANN. § 311.023(1), (5) (in construing a statute, courts may consider the "object sought to be attained" and the "consequences of a particular construction"). Finally, the Legislature has explicitly provided that the purpose of the TCPA is
to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.
TEX. CIV. PRAC. & REM. CODE § 27.002 (emphasis added). Appellants have not explained how their right to "participate in government" is served by defining the word "common" to include their private business interests.
Because the right of association claim in Kawcak focused on communications between two alleged conspirators, the Second Court of Appeals declined to specify what size a group must be to "cross[ ] the boundary of common." Kawcak , 582 S.W.3d at 576. A careful reading of Kawcak shows, however, that one of the two alleged conspirators in that case was a businessman "and his companies." Id. at 571. Similarly, Appellants here are a businessman and companies controlled by him. For this reason, we conclude that we need not place a specific numeric value on the TCPA's definition of "common." We note, however, that we express no opinion on the ultimate merits of San Roman's vicarious liability/veil-piercing claim.
Appellants argue that Kawcak is an outlier that "constitute[s] a judicial ‘fix’ of the TCPA, which is prohibited by the Supreme Court." They urge us to instead follow purportedly different analyses on this issue from the First, Third, Twelfth, and Fourteenth Courts of Appeals. However, the opinion Appellants cite from the First Court of Appeals was withdrawn on en banc reconsideration after the parties filed their briefs in this court. See Gaskamp v. WSP USA, Inc. , No. 01-18-00079-CV, 2018 WL 6695810 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018), withdrawn and superseded by Gaskamp v. WSP USA, Inc. , 596 S.W.3d 457 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) (op. on en banc reconsideration). The substitute opinion issued by the en banc court explicitly adopts Kawcak ’s analysis and holds that "with respect to the pre-amendment version of the TCPA, the proper definition of ‘common’ in the phrase ‘common interests’ is ‘of or relating to a community at large; public.’ " Gaskamp , 596 S.W.3d at 476.
It is true that the Third, Twelfth, and Fourteenth Courts have treated various business interests as "common interests" under the TCPA. See Morgan v. Clements Fluids S. Tex., Ltd. , 589 S.W.3d 177, 185 (Tex. App.—Tyler 2018, no pet.) ; Grant v. Pivot Tech. Sols., Ltd. , 556 S.W.3d 865, 879 (Tex. App.—Austin 2018, pet. denied) ; Abatecola v. 2 Savages Concrete Pumping, LLC , No. 14-17-00678-CV, 2018 WL 3118601, at *7–8 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet. denied) (mem. op.) ; Craig v. Tejas Promotions, LLC , 550 S.W.3d 287, 295–96 (Tex. App.—Austin 2018, pet. denied) ; Elite Auto Body LLC v. Autocraft Bodywerks, Inc. , 520 S.W.3d 191, 205 (Tex. App.—Austin 2017, pet. dism'd). However, those opinions predate Kawcak , and none of them rest on a detailed analysis of the word "common." Instead, most of Appellants’ cited authority focuses on the distinction between constitutionally protected expression and the statutory definitions in the TCPA. See Abatecola , 2018 WL 3118601, at *7–8 ; Craig , 550 S.W.3d at 294–96 ; Elite , 520 S.W.3d at 201–02. That distinction is not relevant where, as here, both parties agree that the TCPA's defined rights are broader than the traditional constitutional conception of those rights. Furthermore, while Appellants imply that these courts disagree with Kawcak ’s analysis, one of them—the Fourteenth Court of Appeals—recently relied on Kawcak to reject a construction of the TCPA's right of association that would " ‘hing[e] on whether a single tortfeasor or multiple tortfeasors acted.’ " Bandin v. Free & Sovereign State of Veracruz de Ignacio de la Llave , 590 S.W.3d 647, 653 (Tex. App.—Houston [14th Dist.] 2019, pet. filed) (quoting Kawcak , 582 S.W.3d at 584 ).
Finally, as San Roman notes, the Legislature recently amended the TCPA to explicitly provide that " ‘[e]xercise of the right of association’ means to join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern. " Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Sess. Law Serv. 684, 687 (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(2) ) (emphasis added). While we agree with Appellants that we must apply the statute as it existed at the time this lawsuit was filed, we are also mindful that "[w]hen the meaning of an existing law is uncertain, the Legislature's later interpretation of it is highly persuasive." Tex. Water Comm'n v. Brushy Creek Mun. Util. Dist. , 917 S.W.2d 19, 21 (Tex. 1996). Furthermore, because the Legislature amended the TCPA's definition of "right of association" after the Second Court of Appeals issued its opinion in Kawcak , we must presume it was aware of that case law when it acted. Traxler v. Entergy Gulf States, Inc. , 376 S.W.3d 742, 748 (Tex. 2012). Because the Kawcak Court's analysis is consistent with the Legislature's later interpretation of the TCPA's right of association, we decline Appellants’ invitation to apply a contrary interpretation of the statute's previous language. Accordingly, we overrule Appellants’ claim that the trial court erred by concluding the TCPA does not apply to San Roman's claims. Because our ruling is dispositive, we do not need to address any of Appellants’ other issues. See TEX. R. APP. P. 47.1.
Appellants’ Issue on Rehearing
In their motion for rehearing, Appellants argue for the first time that we should reverse the trial court's order denying its TCPA motion because "the development of oil and gas is recognized as a ‘matter of public concern’ in free speech cases, and the result should be no different for the right of association." We generally do not address issues raised for the first time on rehearing. See AVCO Corp. v. Interstate Sw., Ltd. , 251 S.W.3d 632, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). This is because "[t]he sole purpose of a motion for rehearing is to provide the court an opportunity to correct any errors on issues already presented." OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P. , 234 S.W.3d 726, 747 (Tex. App.—Dallas 2007, pet. denied).
Here, the primary issue Appellants presented on initial submission was "[w]hether the trial court erred in concluding that the TCPA did not apply because ‘business interests’ are exempted from ‘common interests’ supporting the exercise of the right of association, when the Legislature included no such carveout in the statute." That issue cannot be interpreted as asking us to determine whether oil and gas production constitutes a matter of public concern for purposes of the TCPA. See Greene v. Farmers Ins. Exch. , 446 S.W.3d 761, 764 n.4 (Tex. 2014) (distinguishing between new issues that were not previously raised and "new arguments in support of issues properly before the Court"). Moreover, the record shows Appellants had ample opportunity on initial submission to present the new issue they raise on rehearing. The trial court's order denying Appellants’ TCPA motion explicitly cited Kawcak to conclude that the TCPA's definition of right of association applied to "common [public] interests" and therefore did not protect the private business interests upon which Appellants relied. Additionally, even though Appellants directly addressed Kawcak ’s analysis in their opening brief, they did not argue that oil and gas production constituted a matter of public concern under that analysis. Instead, they simply argued that Kawcak was wrongly decided. Finally, in response to San Roman's appellate argument that Kawcak ’s application of "a community-oriented concept of common interests serves both purposes of the TCPA ... while a private concept serves neither," Appellants’ reply brief argued that "public participation is not an element of the TCPA's ‘right of association.’ "
The other issues Appellants presented—whether San Roman sufficiently proved the elements of its claim and whether Appellants were entitled to attorney's fees and sanctions—assumed that the trial court incorrectly resolved Appellants’ primary issue.
In short, Appellants’ motion for rehearing asks us to consider an issue that they could have raised on initial submission, but did not. As a result, we conclude we may not properly consider that issue for the first time on rehearing. See AVCO Corp. , 251 S.W.3d at 676 ; OAIC Commercial Assets , 234 S.W.3d 726 at 747.
CONCLUSION
We affirm the trial court's order denying Appellants’ TCPA motion.
DISSENT TO OPINION ON MOTION FOR REHEARING
Dissenting Opinion by: Luz Elena D. Chapa, Justice
As originally enacted, the Texas Citizens Participation Act (TCPA) defined the "exercise of the right of association" as "a communication between individuals who join together to collectively express, promote, pursue, or defend common interests." The majority construes "common interests" as "public" interests, which are interests of the community at large. Because the Legislature intended "common" merely to require the interests to be "shared" by the individuals who joined together, I respectfully dissent.
Act of May 18, 2011, 82d Leg., R.S., ch. 341, § 2, sec. 27.001(2), 2011 Tex. Gen. Laws 961 (current version at Tex. Civ. Prac. & Rem. Code § 27.011(2) ).
CONSTRUING " COMMON "
The TCPA does not define "common." Used adjectivally, "common" can mean either "public" or "shared" by two or more people. See Gaskamp v. WSP USA, Inc. , 596 S.W.3d 457, 473 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) (en banc). Construing "common" in the TCPA requires a statutory construction analysis. See In re Panchakarla , 602 S.W.3d 536, 540–41 (Tex. 2020) (orig. proceeding). The plain language, context, purpose, and legislative history support construing "common" interests as those "shared" by the individuals who join together, not "public" interests shared by the community at large.
A. Context requires construing "common" as "shared."
Grammatically, when "common" is used in a sentence to refer to the public or community at large, the term is preceded by "the" or without reference to a specific group. See, e.g. , U.S. CONST. art. I, § 8 ("the common Defence"); WEBSTER'S THIRD NEW INT'L DICTIONARY 458 (2002) ("a sense of common interest"). Here, however, the Legislature used "common" when referring to a more specific group: "individuals who join together." The sentence in which the Legislature used "common" supports construing the term as "shared" not "public."
In the appealed order, the trial court gave the example of "work for the common good" (emphasis added).
Substantively, in the freedom of association context, "common interests" refers to shared interests that cause individuals to associate. The Legislature used "common interests" to define "right of association." TEX. CIV. PRAC. & REM. CODE § 27.001(2). The TCPA's purpose is to safeguard and encourage the constitutional right of free speech, the right of petition, and freedom of association. Id. § 27.002. Although the right of free speech and the right of petition appear in the text of the First Amendment, freedom of "association" is a creature of and defined by Supreme Court precedent. In defining the constitutional right to freedom of association, the Supreme Court has used the term "common interests" to refer to interests shared by specific groups, such as a group of private businesses, rather than the public or community at large. See, e.g., Cal. Motor Transp. Co. v. Trucking Unlimited , 404 U.S. 508, 510–11, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972).
In discussing freedom of association, the Supreme Court has used the word "common" to mean shared by the individuals who associated together. See, e.g., Roberts v. U.S. Jaycees , 468 U.S. 609, 618, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) ("[W]hen the State interferes with individuals’ selection of those with whom they wish to join in a common endeavor, freedom of association in both of its forms may be implicated."). The "shared goals" that cause individuals to join together for collective action is essential to the right to freely associate. See id. at 622, 104 S.Ct. 3244.
When enacting the TCPA in 2011, the Legislature purposefully used the word "public" to limit the "free speech" and "right of petition" definitions. However, the Legislature chose not to use "public" in defining "right of association." When the Legislature "uses certain language in one part of the statute and different language in another," we must assume the Legislature intended different meanings. Ineos USA, LLC v. Elmgren , 505 S.W.3d 555, 564 (Tex. 2016). If the Legislature intended to limit the right of association to "public" interests, the Legislature would have used that term, as it did in defining the rights of free speech and to petition. Instead, the Legislature used "common" interests because the Legislature intended a meaning other than "public" interests. See id.
Moreover, the TCPA as a whole applies to some legal actions relating to private business interests. Specifically, the TCPA's commercial speech exemption exempts some legal actions relating to commercial transactions, but only if the defendant is "primarily engaged in the business of selling or leasing goods or services." TEX. CIV. PRAC. & REM. CODE § 27.010(a)(2). Because the TCPA exempts only some communications on purely private commercial transactions, then it necessarily follows that other communications on purely private commercial transactions may fall within the TCPA's purview. And, the original definition of "matter of public concern" in the TCPA included issues related to goods and services "in the marketplace." Clearly, "text cannot be divorced from context." Worsdale v. City of Killeen , 578 S.W.3d 57, 69 (Tex. 2019). Grammatical, substantive, and statutory context require construing "common" interests as "shared" interests, not "public" interests.
B. Legislative history confirms "common" means "shared."
The 2019 amendments to the TCPA confirm the Legislature intended—and still intends—"common" to mean "shared," not "public." In amending the "right of association" definition, the Legislature acknowledged the TCPA's terms were "overly broad or unclear." Gaskamp , 596 S.W.3d at 474. In 2019, the Legislature amended this definition as follows:
"Exercise of the right of association" means to [a communication between individuals who] join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of
public concern.
Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 1, 2019 Tex. Sess. Law Serv. 684 (current version at Tex. Civ. Prac. & Rem. Code § 27.011(2) ).
Notably, the Legislature kept the word "common" in the definition and did not substitute the word "public" for "common." This confirms "common" interests cannot mean "public" interests.
First, in the 2019 amendments, the Legislature retained the word "common" and limited the "common interests" covered by the definition to those "relating to ... a matter of public concern." The 2019 amendments confirm that only some "common interests relat[e] to ... a matter of public concern"; this necessarily means not all "common interests" relate to a matter of public concern. If some "common" interests are not "public" interests, then "common" interests cannot possibly mean "public" interests.
Second, if courts are to give the word "common" any effect after the 2019 amendments, courts must conclude the Legislature now intends "common" to mean "shared" by the individuals who join together. Otherwise, after the 2019 amendments, courts continuing to construe "common" as meaning "public" would render the word "common" mere surplusage. Alternatively, courts construing "common" as meaning "public" in cases filed before September 1, 2019, when the amendments became effective, would give the same statutory term—"common interests"—different meanings based on when the case was filed, when the Legislature purposefully chose to use the same term for all cases filed before and after the 2019 amendments.
C. Construing "common" as "shared" is consistent with the TCPA's purposes.
Several of our sister courts have reasoned that "common" must mean "public"; otherwise, the definition of "right of association" would absurdly extend the TCPA's protections beyond the purpose of the statute. Gaskamp , 596 S.W.3d at 472. The TCPA's purpose "is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." TEX. CIV. PRAC. & REM. CODE § 27.002. Respectfully, some of our sister courts’ reasoning does not withstand close scrutiny.
First, our sister courts’ reasoning overlooks that "[a]lthough speech on matters of private concern is of less constitutional value than is speech on matters of public concern, such speech is not totally unprotected by the First Amendment." Snead v. Redland Aggregates Ltd. , 998 F.2d 1325, 1333 (5th Cir. 1993). Under the TCPA's original definitions, "exercise of" both the "right of association" and the "right of free speech" included only "communications." "Exercise of the right of free speech" included only communications involving "a matter of public concern"; in contrast, the TCPA's original "right of association" definition did not require the communication to relate to a matter of public concern, so long as the individuals communicating with each other joined together for "common interests." In other words, the TCPA's original "right of association" definition included some speech on purely private matters, which is constitutionally protected.
Our sister courts have reasoned that construing "common" as "public" would align the original "right of association" definition with the other defined rights. But in the "right of association" definition, "common" modifies "interests," not "communications." Construing "common" interests as "public" interests would also include communications on purely private matters, so long as the individuals who communicated had joined together and did so for public interests. Such a construction would not require the "communication" to relate to a matter of public concern, or even relate to the public or community interests for which the individuals joined together. Instead, reading a "public" limitation into the TCPA's original "right of association" definition would simply render the original "right of association" definition entirely duplicative of the "right of free speech" definition, which already had covered all communications relating to matters of public concern.
Second, the TCPA's purpose is not only to protect constitutional rights, but also to "encourage" them. TEX. CIV. PRAC. & REM. CODE § 27.002. "The federal constitution sets the floor for individual rights," but the states set the ceiling. LeCroy v. Hanlon , 713 S.W.2d 335, 338 (Tex. 1986). To encourage the exercise of constitutional rights, the Legislature was free to statutorily define those rights more broadly than the U.S. Constitution, and to afford those broadly defined statutory rights more procedural protections in state court. See id. In the freedom of association context, communication between two individuals on matters of seemingly private concern is often the starting point for a larger group of individuals joining together for what becomes a matter of public concern, so that such groups can more effectively participate in governmental decisions affecting their private or business interests. Consequently, in 2011, the Legislature rationally could have determined that suits filed against two individuals who joined together to advance mutually shared private interests, based on their communication with each other, could deter what would have become an organized effort to participate in government.
Our sister courts have held that for the TCPA to apply, there must be an "element of public participation." Gaskamp , 596 S.W.3d at 472, 476 (citing ExxonMobil Pipeline Co. v. Coleman , 464 S.W.3d 841, 847 (Tex. App.—Dallas 2015), rev'd on other grounds , 512 S.W.3d 895, 899 (Tex. 2017) (per curiam) ). However, many cases involving matters of public concern are made in purely private contexts with no element of public or citizen participation. See, e.g., Coleman , 512 S.W.3d at 901 (reversing court of appeals, and holding the TCPA applied to private speech of a private employer in terminating the employment of a private employee); Lippincott v. Whisenhunt , 462 S.W.3d 507, 509 (Tex. 2015) (per curiam) (reversing court of appeals, and holding the TCPA applied to emails from private hospital administrators about a nurse anesthetist's job performance).
Third, construing "common" as requiring the interests to be "shared by the public or at least a group," Kawcak v. Antero Res. Corp. , 582 S.W.3d 566, 576 (Tex. App.—Fort Worth 2019, pet. denied), risks undermining constitutional protections for the expression and advancement of minority interests. In the TCPA's "right of association" definition, "common" modifies "interests." The "public" definition of "common" connotes some degree of universality, or interests that are "not limited to one person or special group." See id. ; see, e.g. , U.S. CONST. art. I, § 8 ("the common Defence"). Construing "common" as requiring a degree of universality of interest invites courts to determine whether, under the TCPA, the exercise of the right to freedom of association will be protected based on whether the viewpoint is sufficiently shared or accepted by the community.
Our sister courts have also concluded that construing "common" interests as those shared by the individuals who have joined together would undermine the TCPA's goal of "protect[ing] the rights of a person to file meritorious lawsuits for demonstrable injury." TEX. CIV. PRAC. & REM. CODE § 27.002. But a broader construction of "common" would merely broaden the TCPA's applicability; it would not undermine one's ability to demonstrate a compensable injury by presenting prima facie evidence of a claim. Presenting prima facie evidence is not inherently more difficult when the defendants’ interests are private, rather than public.
Our sister courts have also construed "common" interests as "public" interests to avoid the absurdity of having the TCPA's applicability " ‘hing[e] on whether a single tortfeasor or multiple tortfeasors acted.’ " Bandin v. Free & Sovereign State of Veracruz de Ignacio de la Llave , 590 S.W.3d 647, 653 (Tex. App.—Houston [14th Dist.] 2019, pet. filed) (quoting Kawcak , 582 S.W.3d at 584 ). Instead, these courts have held "the plain meaning of the word ‘common’ in TCPA section 27.001(2) ’s definition of ‘the right of association’ requires more than two tortfeasors conspiring to act tortiously for their own selfish benefit." Kawcak , 582 S.W.3d at 588. Although our sister courts have held that drawing the line between one tortfeasor and two is arbitrary, it appears they have instead opted for drawing the line between two tortfeasors, or three or more tortfeasors. See id.
Our sister courts’ decision to draw the line at two or more defendants is more arbitrary than drawing the line at one defendant. Statutory line-drawing is the Legislature's prerogative, not ours. Here, the Legislature drew the line at one defendant by using the phrase "individuals who join together to collectively express, promote, pursue, or defend common interests"; a single tortfeasor simply cannot meet this definition, but two tortfeasors who join together to pursue common interests can. Redrawing the line at more than two tortfeasors is more arbitrary than one because doing so has no basis in the text of the "right of association" definition, and invites courts to arbitrarily re-draw the line at two tortfeasors or more (or, as in this case, five tortfeasors).
Footnote 4 of the majority's opinion is a case-in-point. The majority notes our sister courts have declined to define how many individuals or businesses must "share" an interest before the interest is a "public" interest. Similarly, the majority declines to "place a specific numeric value on the TCPA's definition of ‘common.’ " But construing "common" as "public" invites, if not requires, trial courts to do just that. Consequently, construing "common" as "public" obfuscates legislative clarity with judicial confusion.
D. Conclusion
The majority and some of our sister courts’ reasoning show the Legislature's public policy decision in 2011 not to limit the TCPA's "right of association" definition to interests relating to a matter of public concern was questionable. Recognizing this issue, the Legislature then limited the TCPA's "right of association" definition to such interests, but also decided not to make that change retroactive. Here, again, whether to make a statutory amendment retroactive is the Legislature's prerogative; not ours. Considering context, statutory purpose, and legislative history, the Legislature intended "common" to mean "shared" by the individuals who joined together, not "public" interests of the community at large.
APPLICATION
In the trial court, appellants argued San Roman's legal action related to the exercise of their right of freedom of association; specifically, to communications between appellants, who had joined together to collectively promote their shared interests. The trial court's sole basis for denying the TCPA motion was that appellants’ shared interests were "business" interests, not "public" interests. Whether the TCPA applies to a legal action is a legal question we review de novo. See Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC , 591 S.W.3d 127, 132 (Tex. 2019).
Appellants argued in their TCPA motion that San Roman's petition "shows that Lewis and Global worked together for purposes of developing Lewis's oil-and-gas leases.... All these communications bear on Lewis's right of association to promote its interest in developing its leases." Appellants further argued San Roman's pleadings show its legal action was related to leases entered into for "investigating, exploring, prospecting, and drilling for and producing oil, gas and all other hydrocarbons." In other words, appellants argued San Roman's petition related to an oil and gas lease. Regardless of whether "common" is properly construed as "shared" or "public," the trial court's order must be reversed. If "common" merely means "shared," San Roman's pleadings establish appellants joined together for shared interests.
But even if "common interests" means "public interests," San Roman's pleadings establish appellants joined together for "public interests." The Supreme Court of Texas has long-recognized "Texas has a strong public policy not to hinder the exploration and development of oil and gas." Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc. , 590 S.W.3d 471, 495 (Tex. 2019). "Public policy" means the "collective rules, principles, or approaches to problems that affect the commonwealth or (esp.) promote the general good , [including] principles and standards regarded ... by the courts as being of fundamental concern to the state and the whole of society ." BLACK'S LAW DICTIONARY 2019 (emphasis added). Consequently, when individuals join together to develop oil and gas, even if for business reasons, their interests in exploring and producing oil and gas are not only business interests, they are also "public" interests. See ETC Tex. Pipeline, Ltd. v. Addison Expl. & Dev., LLC , 582 S.W.3d 823, 835 (Tex. App.—Eastland 2019, pet. filed) ("Appellants’ communications about acquiring the oil and gas leases ... and the right to gather and transfer oil and gas ... were at least tangentially related to an existing service in the marketplace, a ‘matter of public concern’ under the TCPA."). Thus, even if "common" interests must be construed as "public" interests, I would hold appellants satisfied their initial burden to show San Roman's pleadings related to their exercise of the right of association.
MOTION FOR REHEARING
I would vote to grant a rehearing in this case. Solely on the grounds of briefing waiver, the majority declines to apply its construction of the TCPA—that "common interests" means "public interests"—to the facts of this case. We must liberally construe appellate briefs so that a party's rights are not unnecessarily lost by waiver. See St. John Missionary Baptist Church v. Flakes , 595 S.W.3d 211, 213–14 (Tex. 2020) (per curiam) ; Horton v. Stovall , 591 S.W.3d 567, 569 (Tex. 2019) (per curiam). Texas courts construe statutes not to answer abstract legal questions, but for the purpose of determining how the statute applies to the facts of the case. See, e.g., Panchakarla , 602 S.W.3d ar 540–41 (first construing the TCPA, and then applying the construction to the facts of the case). Notably, our sister courts have, in construing "common interests" in the TCPA, concluded: (1) what the Legislature intended by "common interests"; and then (2) applied the statutory interpretation to the facts of the case. In the absence of a stipulation by the parties, I would hold our analysis requires the same.
See, e.g., Gaskamp , 596 S.W.3d at 474-76 (construing "common interests" then applying the construction to the facts of the case); Dyer v. Medoc Health Services, LLC , 573 S.W.3d 418, 427 (Tex. App.—Dallas 2019, pet. denied) (same); ExxonMobil Pipeline Co. , 464 S.W.3d at 848-850 (same); see also Kawcak , 582 S.W.3d at 576-88 (construing "common interests" and noting "Kawcak acknowledges that his invocation of the TCPA assumes a definition of ‘common’ at odds with our holding").
Appellants’ brief squarely challenges the trial court's ruling that the TCPA's "right of association" definition does not apply to San Roman's legal action. Appellants’ primary issue on appeal—whether the TCPA's "right of association" definition applies to the business interests in this case—has been fairly raised. Our standard of review therefore requires us to conduct a de novo review of the TCPA motion and the response to determine whether appellants satisfied their burden to show the TCPA's "right of association" definition applies to San Roman's legal action. See Robert B. James, DDS, Inc. v. Elkins , 553 S.W.3d 596, 603 (Tex. App.—San Antonio 2018, pet. denied) (stating we "must" consider the pleadings filed below). Consequently, our review of appellants’ primary issue on appeal—whether the TCPA's "right of association" definition applies to this case—requires not only construing the TCPA, but applying our construction to the facts of this case. See, e.g., Panchakarla , 602 S.W.3d at 540–41. Appellants’ motion for rehearing cites relatively clear law establishing that—even if "common" means "public"—appellants satisfied their burden in the trial court to show the TCPA's "right of association" definition applies to San Roman's legal action. By not applying its construction of the TCPA to the facts of this case, the majority sidesteps the primary issue raised by appellants, and merely answers an abstract and purely legal question of statutory construction. But see Brown v. Todd , 53 S.W.3d 297, 302 (Tex. 2001) ("[O]ur separation of powers article, Tex. Const., art. II, § 1, prohibits courts from issuing advisory opinions that decide abstract questions of law without binding the parties.").
CONCLUSION
I would reverse the trial court's order. The trial court did not reach the issue of whether San Roman presented prima facie evidence of its claims. I would therefore remand for the trial court to address whether San Roman presented prima facie evidence of its claims. Because the majority affirms the trial court's order, I respectfully dissent.